Council criticised for failing to provide asylum-seeker with an independent advocate under the Care Act

A judge has ordered the London Borough of Haringey to re-do a flawed assessment after it failed to provide an asylum-seeking woman with an independent advocate, in the first case brought under the Care Act.

John Bowers QC told Haringey council it must rewrite the care plan of an Afghan woman who arrived in the UK in October 2013 having suffered rape, torture, physical and emotional abuse.

Impact of homelessness

He said the council had failed to consider that homelessness would render the rest of the woman’s care and support package useless. Its mistake was not in its refusal to accommodate her itself, but in failing to ask itself the right questions.

On 20 May 2015 the council decided the woman was not eligible for care and support under the Care Act, except in limited respects, and in particular was not entitled to be provided with accommodation under the act.

Post-traumatic stress disorder

The woman known as SG suffered severe mental health problems including complex post-traumatic stress disorder, spoke no English and was illiterate, but had made “steady albeit slow progress” since receiving asylum support, according to her care coordinator.

She was housed with four other women under section 95 of the Immigration Act, but since February 2014 representations had been made that she should be housed by the local authority instead on a more permanent basis.

But Haringey  contended SG was not entitled to accommodation under the Care Act because her community care package was adequate.

Paradigm case

While Judge Bowers agreed local authorities are afforded a large amount of discretion and that providing SG with accommodation was not the only possible outcome, he criticised the council for not appointing an independent advocate despite the fact the requirement for one under the Care Act “could not be clearer”.

“This appears to me to be the paradigm case where such an advocate was required, as in the absence of one the claimant was in no position to influence matters,” he said. As a result, the assessment was flawed and must be redone, he added.

Those carrying out the woman’s care plan mistakenly thought it was appropriate to take into account the accommodation being provided elsewhere, Judge Bowers said.

The council has now accepted it should not have done so, but maintains this nonetheless did not lead to a flawed assessment process.

The judge in the case also rejected the claim, made by the council, that the question was academic because SG had since been granted asylum and was able to apply for accommodation under the Housing Act.

Issues of capacity

In a letter SG’s solicitor  told the judge: “Our client is illiterate, has severe memory difficulties, cannot count, cannot tell the time and has severe difficulty learning her way to new places and using public transport.

“We are concerned this overlooks completely the question of whether our client even has the mental capacity to make a housing application.”

Judge Bowers said: “I think it is appropriate simply to quash  the decision of 20 May 2015 on the cumulative grounds that there was a lack of an independent advocate and for failure to properly consider accommodation.” No other relief was granted.